Clark v. Wardwell

The return, upon a warrant calling a town meeting, must show that an “ attested” copy thereof was posted up in some public and conspicuous place “ in” the town where the meeting was to be held. If a town “ has appointed by vote, in legal meeting, a different mode” of notifying its meetings, it is incumbent upon the party desiring to establish the legality of the meeting, to show it was called in accordance with the mode prescribed by the town. In a petition for an injunction against town officers, under § 1, c. 239, of the Public Laws of 1861,* an allegation denying the prior legal authority of the town to authorize the issuing of town orders by the selectmen, and the subsequent legislative ratification thereof, puts directly in issue the legality of the town meeting. Where such petition ran against the selectmen, collector and treasurer, eo nomine, and the names of the individuals holding such offices, when the bill was drawn, were inserted in the prayer of the bill as parties respondent, upon whom service was made: — Held, that the injunction would not be dissolved as to the particular respondents, although they had ceased to hold the respective offices named.

Bill in Equity brought under the Public Laws of 1864, c. 239, § 1,* by the complainants, "ten taxable inhabitants” of the town of Frankfort, to enjoin the selectmen, collector and treasurer of said town from paying, or receiving in payment of taxes, certain town orders therein mentioned, drawn in pursuance of a vote of the town, to pay bounties to certain persons named. The bill alleged that, at a meeting of the inhabitants of said town holden March 6, 1865, the warrant calling the meeting contained the following articles : "Article 29. To see what action the town will take towards raising money to fill the quota of said town, under the call of Dec. 19, 1864, and towards paying” two persons named, who are drafted and accepted under the call of July, 1864. "Article 30. To see what action the town: will take in regard to compensating those who have furnished substitutes for the war,” &c. That the action of the inhabitants of the town upon said articles was as follows : "Article 29. Yoted that the selectmen be authorized and instructed to pay to any person who may volunteer or be drafted, or furnish a. substitute and be mustered into the military or naval service of the United States, under the call of Dec. 19, 1864, the sum of $300, or a town note or order for that sum; and to” two persons named, " who were drafted and mustered into the service under the July call, $25 per month, so long as they shall remain in the service. "Article 30. That the selectmen be instructed to draw a town order of $300 for each man who has put in a substitute since the commencement of the rebellion.” The bill further alleged that the selectmen issued under the vote upon Article 29, a town order of $300 to each of fifteen persons named, and to each of the two drafted persons named, two orders, one of $150 and one of $66. That, under the vote upon Article 30, the selectmen issued an order of $300 to each of twenty persons named. The bill further alleges that, at a meeting of said inhabitants, held March 5, 1866, the warrant contains the following articles : " Article 11. To see how much money the town will vote to raise to pay its indebtedness.” That, upon said article, the town " voted to raise $10,000 by assessment, to pay the town’s indebtednessthat the money so voted to be raised, was intended for the purpose of paying said orders; that said inhabitants " had no legal right, power or authority, * * * * by virtue of any article or articles in said first named warrant, to vote to authorize their selectmen to issue any one of such orders * * that the said inhabitants, at said- last named meeting " had no legal right, power or authority to vote to raise any money for the purpose of paying said town orders; and that the action of said inhabitants in all of said premises has not been made valid by any subsequent Act of the inhabitants of this State, or of the Legislature.” The prayer of the bill was that these respondents, named and described as selectmen, collector and treasurer of the town, might be enjoined from taking up any of said orders and issuing others or other orders or notes directly or indirectly in the stead thereof; or from receiving directly or indirectly any or any part of said orders in part or full payment of taxes now due or to become due ; and from paying directly or indirectly any money out of the treasury of the town in part or full payment of said orders or interest thereon. The parties agreed that the articles and votes set out in the bill were correct, and that the respondents, since the commencement of the bill, had ceased to be officers of the town by expiration of their term of office. The return upon the warrant for the meeting of March 6, 1865, was dated Feb. 25, 1865, wherein the person to whom the warrant was addressed certified that he has notified and warned the inhabitants of said Frankfort, &c., "by posting up two copies of the within in two public and conspicuous places; one at J. Wardwell’s store, one at the post office at Frankfort Mills, seven days prior to the time appointed for said meeting.” The return upon the warrant for the meeting of March 5, 1866, declared the service to have been made by "posting up two copies of said warrant, one in the post office at Frankfort mills, and one in James Wardwell’s store, being public and conspicuous places in said town,” &c. The facts connected with the returns were put in subject to objection, and the respondents to have the benefit of all legal rights in relation to amendment of records and returns. 1. The prayer of the petition is, that these respondents, described therein as selectmen, treasurer and collector, may be enjoined from paying certain orders, &c. The agreed facts find that these individuals do not now hold those offices. To enjoin them from doing an act which they have no official authority to do, would be a mere idle form ; an injunction on them would have no operation on their successors in office. For aught that appears, their successors may have already paid the orders; or, if not, an injunction made perpetual on these respondents, now that they are out of office, will not enjoin those who now hold the office from acting in the premises. To compel these respondents to incur the expense of answering to a suit to which they were made parties only by reason of their official capacity, after they have ceased to hold or exercise that capacity, would be inequitable. The injunction, as to them at least, should be dissolved; and they should be indemnified by the petitioners for the costs they have incurred since they, ceased to hold office. The course which petitioners should have adopted when that event occurred is so obvious that I need not indicate it. 2. The petitioners, in their petition, assign certain reasons why the respondents should be enjoined, &c. Their counsel, in argument, assigns another reason, viz.: that the meetings, at which the votes were passed, were not legally called. This point is not open to them; they must confine themselves to the causes enumerated in their petition. It can be raised only by amending the petition, or complaint, or bill, whichever may be the appropriate style of the process, and the Court will not, at this stage of the proceedings, permit the amendment. " After the cause is at issue the Court will not give the plaintiff leave to amend, unless he shows, not only the materiality of the proposed alteration, but also that he was not in a condition to have made it earlier.” Story’s Coni, on Eq. Pl.,.(ed. of 1888,) pp. 268-9. "Application for leave to amend must be at the proper stage of the cause; the proper stage is before the cause is at issue; and the cause is properly at issue when the replication is in and the pleadings are closed.” Ib. 679, 681. But, admitting that petitioners can make the point, it is incumbent on them to show that the meetings were not legally called. The defects pointed out are in the returns of the warning officers; for aught that appears those meetings were notified in accordance with the vote of the town. R. S., c. 3, § 7. Petitioners do not show that they were not. If there is any defect in the returns we shall'ask for leave to amend them; this right is allowed us by the "agreed facts”; the Court will not, of course, refuse permission.